R v Popata-Edwardson

[2018] NZHC 2115

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-087-131

[2018] NZHC 2115

THE QUEEN

v

FARIMOND POPATA-EDWARDSON

Hearing:

16 August 2018

Appearances:

O M Salt for Crown

R Gowing for Defendant

Judgment:

17 August 2018

JUDGMENT OF LANG J

[on directions made under s 122 of the Criminal Procedure Act 2011]

This judgment was delivered by me on 17 August 2018 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

R v POPATA-EDWARDSON [2018] NZHC 2115 [16 August 2018]

[1]    Mr Popata-Edwardson is due to stand trial on 20 August 2018 on charges of participating in an organised criminal group, rioting, discharging a firearm at law enforcement officers and discharging a firearm with reckless disregard for the safety of members of the Mongrel Mob.

[2]    Sometime after his release on bail in July 2017, Mr Popata-Edwardson left the address to which he had been bailed in Northland.  Mr Gowing, who has acted on  Mr Popata-Edwardson’s behalf to date, has not spoken to him since then. The police have not been able to execute a warrant issued for Mr Popata-Edwardson’s arrest in April 2018.

[3]    The Crown asks me to make a direction under s 122 of the Criminal Procedure Act 2011 (the Act) that the trial is to proceed in the event that Mr Popata-Edwardson does not appear on 20 August 2018.

The Crown case

[4]    The charges were laid as a result of an incident that occurred in Whakatane on the afternoon of 17 January 2017. On that date members of the Black Power gang, with whom Mr Popata-Edwardson is associated, learned that a funeral procession comprising members and associates of the rival Mongrel Mob gang was to pass through Whakatane that day. They took exception to this, particularly because there had been heightened animosity between the two gangs in recent weeks following an incident in which the Mongrel Mob had taken and burned a patch belonging to a Black Power member. The Black Power also regarded Whakatane as being a Black Power stronghold. They decided to put on a show of force to make known their displeasure at the presence of the Mongrel Mob in Whakatane.

[5]    Large numbers of Black Power members and associates then began to gather in areas where they thought the funeral procession was likely to travel. As it transpired, the procession entered Whakatane by a back route. As it was travelling along Valley Road towards Arawa Road, Black Power members and associates ambushed it by throwing rocks, sticks and bottles at cars in the procession. Somebody in the procession responded by discharging a firearm in the direction of the Black

Power members. A motor vehicle driven by members of the Mongrel Mob then tried to run down the Black Power members as they ran away from the scene.

[6]    Word of the shooting spread quickly. It resulted in a group of Black Power members and associates, including Mr Popata-Edwardson, gathering in Arawa Road. They began taunting and chanting gang slogans at a large group of Mongrel Mob members and associates gathered approximately 150 metres away at the intersection of Valley Road and Arawa Road.

[7]    A silver Mitsubishi Galant motor vehicle then arrived and the boot of the vehicle was opened. Firearms were taken from the boot, and one of these was discharged twice in the direction of the Mongrel Mob members at the other end of the street. The shots were also aimed in the general direction of a small number of police officers, who were endeavouring to keep the two groups apart.

[8]    The Crown alleges Mr Popata-Edwardson participated in an organised criminal group by joining a group of persons who had the unlawful objective of wounding members of the Mongrel Mob by discharging a firearm at them with reckless disregard for their safety. The Crown says Mr Popata-Edwardson acted in a manner that showed he was participating in the activities of the group whilst in Arawa Road. It also contends his actions amounted to intentional encouragement of the person who discharged the firearm towards the police officers and with reckless disregard for safety of the members of the Mongrel Mob.

Events following Mr Popata-Edwardson’s arrest

[9]    Mr Popata-Edwardson was arrested in January 2017, and remained in custody until he was  bailed by Heath J  with the consent of the Crown  on 27 July 2017.    Mr Gowing advises me that Mr Popata-Edwardson did not sign a bail bond when he was released from prison. As a result, he did not have notice of the date upon which he was required to appear at Court.

[10]   The police arrested a total of 25 persons as a result of the incident on 17 January 2017. For logistical reasons it was not possible to try all the defendants at a single fixture. The Court therefore allocated two trials, each of which initially involved 12 or

13 defendants and was to be of six weeks duration. The first trial was to commence on 25 June 2018 and the second on 20 August 2018.

[11]   On 8 September 2017, the Court directed that Mr Popata-Edwardson was to be tried at the first trial. Mr Gowing appeared for Mr Popata-Edwardson on that date and presumably wrote to Mr Popata-Edwardson to advise him of the trial date.

[12]   Mr Gowing clearly believed he still held instructions for Mr Popata- Edwardson in December 2017, because he sought a sentence indication on Mr Popata- Edwardson’s behalf during that month. Both Mr Gowing and the Crown filed submissions in relation to the proposed indication. Ultimately, however, I decided it was not appropriate to provide a sentence indication because counsel were so far apart regarding their views of Mr Popata-Edwardson’s culpability based on the agreed summary of facts.

[13]   At a callover on 18 April 2018 Mr Gowing advised the Court he had lost contact with his client. A warrant was issued for Mr Popata-Edwardson’s arrest at that time, and he was removed from the group of defendants to be tried at the first trial.

[14]   The first trial ultimately proceeded on 25 June against six defendants, and was completed within three weeks.

[15]   Attempts to locate Mr Popata-Edwardson have thus far not succeeded. He is therefore unlikely to be present at the commencement of the second trial on 20 August 2018. The second trial originally involved twelve defendants. Other than Mr Popata- Edwardson, only one defendant remains to be tried at the second trial. The Crown says Mr Popata-Edwardson’s trial should proceed on 20 August even though he may not be present. The trial is expected to be concluded within a week.

Section 122 of the Criminal Procedure Act 2011

[16]   The issue the Court is now required to determine is governed by s 122 of the Criminal Procedure Act 2011, which provides as follows:

122     Non-attendance of defendant at trial for offence in category 2, 3, or 4

(1)This section applies to any trial if—

(a)the offence charged is a category 2, 3, or 4 offence; and

(b)the defendant is required, under section 118, to be present at the trial; and

(c)the prosecutor attends the trial, but the defendant does not.

(2)If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant's absence will not prejudice his or her defence.

(3)If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:

(a)proceed with the trial in the absence of the defendant:

(b)issue a warrant to arrest the defendant and bring him or her before the court.

(4)Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

(5)Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 121(4).

[17]   Section 122(5) of the Act requires the Court to take into account the matters set down in s 121(4). Section 121(4) provides as follows:

121Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing

…

(4)Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:

(a)any information available to the court about the reasons for the defendant's absence:

(b)any issues that the defendant has indicated are in dispute and the extent to which the defendant's evidence is critical to an evaluation of those issues:

(c)the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

(d)the nature and seriousness of the offence:

(e)the interests of any co-defendant.

[18]I now deal with the matters set out in s 121(4).

Reasons for the defendant’s absence

[19]   The only information presently available to the Court about Mr Popata- Edwardson’s absence is that he has elected to ignore his bail conditions and abscond from the address to which he had been bailed. His failure thereafter to abide by his bail conditions means I accept the Crown’s submission that Mr Popata-Edwardson has made a determined attempt to avoid being tried.

[20]   I do not consider the fact that Mr Popata-Edwardson may not have known when his trial was to take place avails him to any degree. I have no doubt that his contacts within the Black Power gang have advised him of the outcome of the first trial and of the fact that the second trial is due to begin on 20 August 2018.

The extent to which Mr Popata-Edwardson’s evidence is critical to an evaluation of issues in dispute

[21]   The principal issue in  dispute  at  trial  will  be  whether,  by  his  actions,  Mr Popata-Edwardson participated in the actions of a group of persons who had decided to inflict serious violence on members of the Mongrel Mob. In the first trial the jury determined that issue primarily using two pieces of evidence. The first comprised film footage taken by persons in the vicinity of the incident at Arawa Road. They witnessed the key events and filmed them using cellphones and other electronic devices. Secondly, some of the defendants made statements to the police regarding their involvement in the incident giving rise to the charges. The jury was able to assess these against the events they saw depicted in the film footage.

[22]   The film footage will also be an important factor in the second trial. It depicts the manner in which Mr Popata-Edwardson participated in the Arawa Road incident. The jury will be able  to  make  its  own  assessment  regarding  this.  In  addition, Mr Popata-Edwardson made two statements to the police. In the first, he denied any involvement in the incident. In the second, he admitted limited involvement. The jury

will also have access to this material when considering whether the Crown has proved the charges beyond reasonable doubt.

[23]   None of the defendants in the first trial elected to give evidence. That is understandable because they could add little to what was seen on the film footage. I consider it highly unlikely that Mr Popata-Edwardson’s evidence would add anything to that already available to the jury. His evidence is therefore not critical to the evaluation of the issues in dispute.

Length of any adjournment

[24]   This proceeding has now been on foot since January 2017. If Mr Popata- Edwardson’s trial does not proceed on 20 August, the resulting delay will be open- ended because it is not known when he will be arrested. Furthermore, trials are now being set down in this Registry for April and May 2019. If the trial does not proceed as scheduled, there is likely to be a significant delay before it eventually proceeds.

Nature and seriousness of the offence

[25]   The alleged offending is moderately serious. If Mr Popata-Edwardson is convicted, he is likely to face a sentence of around four years imprisonment.

The interests of any co-defendant

[26]   This factor has no relevance in the present context if the trial proceeds  on   20 August as scheduled. Any decision to adjourn the trial would obviously cause further delay for the other defendant to be tried on that date. Bearing that in mind, the available options are to hold a single trial of one week’s duration in Mr Popata- Edwardson’s absence or to hold two trials of the same duration, one on 20 August and one after Mr Popata-Edwardson has been located.

Unfair prejudice to Mr Popata-Edwardson

[27]   I accept there is the potential for unfair prejudice to arise if the trial proceeds in Mr Popata-Edwardson’s absence. It may arise because he will not know the precise nature of the evidence being given against him, and will not be able to provide

Mr Gowing with instructions as the evidence is given. Furthermore, he will not have an opportunity to decide whether to give evidence in his defence.

[28]   Mr Gowing has responsibly accepted, however, that he should continue to represent Mr Popata-Edwardson at trial even if Mr Popata-Edwardson does not appear on 20 August. Mr Gowing will therefore be able to test the evidence for the Crown and make submissions to the jury on Mr Popata-Edwardson’s behalf. This will ensure Mr Popata-Edwardson receives a fair trial in spite of his unwillingness to participate in the trial process. For the reasons already given I consider it unlikely that Mr Popata- Edwardson would give evidence even if he appeared on 20 August.

[29]   I therefore consider the other factors to which I have referred heavily outweigh any unfair prejudice to Mr Popata-Edwardson if the trial proceeds in his absence.

Conclusion

[30]   I consider the trial should proceed as scheduled. I therefore make a direction under s 122 of the Criminal  Procedure Act  2011  that  the  trial  is  to  proceed  in Mr Popata-Edwardson’s absence if he does not appear on 20 August 2018.

Lang J

Solicitors:

Crown Solicitor, Tauranga Gowing & Co Ltd, Whakatane